Liability for an employee's behaviour, and how to protect your business

When considered alongside the Economic Crime and Corporate Transparency Bill, this suggests a trend towards increasing employers’ accountability for wrongdoing. As an employer, you should start thinking about how you can meet this higher bar and protect your business. 

 

 

 

Responding to incidents you are aware of is no longer enough. These new obligations apply even if you were unaware of the behaviour. This means it is more important than ever to consistently raise awareness among your staff, rather than being responsive when an issue arises. But there is a balance to find – don’t go overboard with deterrence at the cost of fair processes, or you may find yourself facing employment claims. 

 

 

Building a good culture starts from the very beginning – recruiting people who understand your expectations and are willing to maintain high standards. During induction, ensure new hires are made familiar with your policies and that you set clear expectations about behaviour. 

 

While it is wise to look for a candidate who understands your workplace values, be careful not to just look for somebody who shares your overall values. Being swayed by a candidate’s religious or philosophical beliefs (actual or assumed) or assumptions about their attitudes based on their age could be discriminatory. Candidates have the right not to be discriminated against and can bring a legal claim for discrimination during the recruitment process. 

 

Some employers try to avoid responsibilities by hiring staff as workers or contractors rather than employees. This can simply cause more trouble later down the line. In a dispute, the tribunal will look at the reality of the relationship, not just the wording of the contract. You will still have to meet your obligations and could also be ordered to make back payments for rights the employee has been denied. You could also find yourself in trouble regarding the tax implications. Such an unexpected outlay could put your business into serious financial trouble. 

 

It is far better to be realistic about your workforce needs and get legal advice about employment status. A solicitor can help you to understand and meet your obligations from the outset to avoid unexpected costs later down the line. 

 

 

Often, handbooks are too long or complicated for staff to engage with or understand. This can lead to managers making mistakes when applying them, having to fill in the gaps themselves, or ignoring them altogether. All of which put you at risk of tribunal claims. 

 

Easy-to-read policies ensure employees can quickly find the information they need and apply it to the situation. It is also important to tailor policies to your business practices, otherwise it may be impossible to implement them properly. 

 

It can help to reduce your risk of liability if you can show that your policy was clear, up to date and that your employees were made aware of it. This shows that the misconduct was a choice made by the employee, not due to a lack of guidance, training or under your direction. 

 

 

Your grievance and disciplinary policies are particularly important in discouraging misconduct. These policies can help you demonstrate that you have clearly outlined the standards of behaviour you expect and that employees are aware of the consequences. 

 

However, don’t be tempted to take a hard line to make an example of individuals. It is important to remain impartial, investigate fully and ensure any response is reasonable and proportionate. If you fail to follow your procedures, or you overreact to a mistake or minor wrongdoing, the dismissal could be unfair - even if the employee has done wrong. 

 

 

A good whistleblowing system will reduce the chance of misconduct going undetected. Once you are aware of misconduct, you can take immediate action to avoid liability. This also acts as a deterrent, as employees are less likely to engage in wrongdoing if they are more likely to be caught. 

 

43% of fraud is detected thanks to a tip, with half of these coming from whistle-blowers, while only 15% of fraud is found by internal audits. The #MeToo sexual harassment scandal revealed that a lot of abuse could have been avoided had businesses listened to whistle-blowers rather than try to silence them with non-disclosure agreements. 

 

Again, your policy should be clear and concise so that staff are confident about how to raise concerns, how their disclosure will be dealt with, and what you will do with the information. 

 

Encouraging employees to raise concerns is only the first part of a good policy. You must also manage disclosures effectively so that whistle-blowers feel supported rather than penalised. Mishandling a disclosure could lead to employment claims, even if you don’t intend to penalise the whistle-blower. For example, how will you investigate the matter while protecting the confidentiality of the whistle-blower? If the disclosure leads to disputes, how will you avoid bullying or harassment between employees? 

 

You will understandably want to act in response to any wrongdoing to avoid liability for their behaviour. But don’t risk a whistle-blower’s well-being in the process, or they may have an employment claim. 

 

 

No matter how good your induction process is, one-off training is not enough to meet your obligations. Regular training keeps the information fresh in employees’ minds. It also gives you the chance to update the information to reflect changes in your practices, your industry, or in response to previous concerns. An out-of-date policy is unlikely to help you in a tribunal dispute. 

 

 

This all puts a lot of responsibility on your HR department or provider to strike the right balance between preventative action and employees’ rights. We can support them in several ways. 

 

We can provide a staff handbook of easy-to-read policies tailored to your business, including policies on whistleblowing, harassment and bullying, bribery, grievances, disciplinary, recruitment and use of company property. We can offer training on implementing policies and the potential pitfalls to watch out for. If you find that certain issues are occurring often, we can offer on-site training on these issues and drop-in sessions for HR staff to discuss problems. 

 

We can also support you in managing grievance procedures, investigations, disciplinary actions, or dismissals in live issues. We’ll ensure your processes are fair, reasonable, and legal, and that you aren’t leaving yourself open to successful claims. 

 

Get in touch to discuss your business needs and how we can help.